Legal provisions of COM(2014)323 - Common rules for imports from certain third countries (recast)

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dossier COM(2014)323 - Common rules for imports from certain third countries (recast).
document COM(2014)323 EN
date April 29, 2015

Contents

CHAPTER I - GENERAL PRINCIPLES

Article 1

1. This Regulation applies to imports of products originating in the third countries referred to in Annex I, with the exception of textile products covered by Regulation (EC) No 517/94.

2. Imports into the Union of the products referred to in paragraph 1 shall take place freely and accordingly shall not be subject to any quantitative restrictions, without prejudice to the safeguard measures which may be taken under Chapter V.

CHAPTER II - UNION INFORMATION AND CONSULTATION PROCEDURE

Article 2

The Commission shall be informed by the Member States if trends in imports appear to call for surveillance or safeguard measures. This information shall contain the available evidence on the basis of the criteria laid down in Article 6. The Commission shall pass on this information to all Member States forthwith.

CHAPTER III - UNION INVESTIGATION PROCEDURE

Article 3

1. Where it is apparent to the Commission that there is sufficient evidence to justify an investigation, the Commission shall initiate an investigation within one month of the date of receipt of information from a Member State and publish a notice in the Official Journal of the European Union. That notice shall:

(a)give a summary of the information received, and require that all relevant information is to be communicated to the Commission;

(b)state the period within which interested parties may make known their views in writing and submit information, if such views and information are to be taken into account during the investigation;

(c)state the period within which interested parties may apply to be heard orally by the Commission in accordance with paragraph 4.

The Commission shall commence the investigation, acting in cooperation with the Member States.

The Commission shall provide information to the Member States concerning its analysis of the information normally within 21 days of the date on which the information is provided to the Commission.

2. The Commission shall seek all information it deems necessary and, where it considers it appropriate, endeavour to check that information with importers, traders, agents, producers, trade associations and organisations.

The Commission shall be assisted in this task by staff of the Member State on whose territory those checks are being carried out, provided that that Member State so wishes.

Interested parties which have made themselves known in accordance with the first subparagraph of paragraph 1, as well as the representatives of the exporting country, may inspect all information made available to the Commission within the framework of the investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, provided that it is relevant to the defence of their interests and not confidential within the meaning of Article 5 and that it is used by the Commission in the investigation. To that end, they shall address a written request to the Commission indicating the information required.

3. Member States shall supply the Commission, at its request and following procedures laid down by it, with the information at their disposal on developments in the market of the product being investigated.

4. The Commission may hear the interested parties. Such parties must be heard where they have applied in writing within the period laid down in the notice published in the Official Journal of the European Union, showing that they are actually likely to be affected by the outcome of the investigations and that there are special reasons for them to be heard orally.

5. Where information is not supplied within the time limits set by this Regulation or by the Commission pursuant to this Regulation, or the investigation is significantly impeded, findings may be made on the basis of the facts available. Where the Commission finds that any interested party or third party has supplied it with false or misleading information, it shall disregard that information and may make use of facts available.

6. Where it appears to the Commission that there is insufficient evidence to justify an investigation, it shall inform the Member States of its decision within one month of the date of receipt of the information from the Member States.

Article 4

1. At the end of the investigation, the Commission shall submit a report on the results to the Committee referred to in Article 22(1) (‘the Committee’).

2. Where the Commission considers, within nine months of the initiation of the investigation, that no Union surveillance or safeguard measures are necessary, the investigation shall be terminated within a month. The Commission shall terminate the investigation in accordance with the advisory procedure referred to in Article 22(2). A decision to terminate the investigation, stating the main conclusions of the investigation and a summary of the reasons therefore, shall be published in the Official Journal of the European Union.

3. If the Commission considers that Union surveillance or safeguard measures are necessary, it shall take the necessary decisions in accordance with Chapters IV and V, no later than nine months from the initiation of the investigation. In exceptional circumstances, that time limit may be extended by a further maximum period of two months. The Commission shall then publish a notice in the Official Journal of the European Union setting forth the duration of the extension and a summary of the reasons therefor.

4. The provisions of this Chapter shall not preclude the taking, at any time, of surveillance measures in accordance with Articles 7 to 12 or, where a critical situation, in which any delay would cause injury which would be difficult to remedy, calls for immediate intervention, safeguard measures in accordance with Articles 13, 14 and 15.

The Commission shall immediately take the investigation measures it considers to be still necessary. The results of the investigation shall be used to re-examine the measures taken.

Article 5

1. Information received pursuant to this Regulation shall be used only for the purpose for which it was requested.

2. The Commission and the Member States, including the officials of either, shall not reveal any information of a confidential nature received pursuant to this Regulation, or any information provided on a confidential basis, without specific permission from the supplier of such information.

3. Each request for confidentiality shall state the reasons why the information is confidential.

However, if it appears that a request for confidentiality is unjustified and if the supplier of the information wishes neither to make it public nor to authorise its disclosure in general terms or in the form of a summary, the information concerned may be disregarded.

4. Information shall in any case be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information.

5. Paragraphs 1 to 4 shall not preclude reference by the Union authorities to general information and in particular to reasons on which decisions taken in pursuance of this Regulation are based. These authorities shall, however, take into account the legitimate interests of the legal and natural persons concerned that their business secrets should not be divulged.

Article 6

1. Examination of the trend in imports, of the conditions in which they take place and of the serious injury or threat of serious injury to Union producers resulting from such imports shall cover in particular the following factors:

(a)the volume of imports, in particular where there has been a significant increase, either in absolute terms or relative to production or consumption in the Union;

(b)the price of the imports, in particular where there has been significant price undercutting as compared with the price of a like product in the Union;

(c)the consequent impact on the Union producers of similar or directly competitive products as indicated by trends in certain economic factors such as:

—production,

—capacity utilisation,

—stocks,

—sales,

—market share,

—prices (i.e. depression of prices or prevention of price increases which would normally have occurred),

—profits,

—return on capital employed,

—cash flow,

—employment.

2. In conducting the investigation, the Commission shall take account of the particular economic system of the countries referred to in Annex I.

3. Where a threat of serious injury is alleged, the Commission shall also examine whether it is clearly foreseeable that a particular situation is likely to develop into actual injury. In this regard account may be taken of factors such as:

(a)the rate of increase of the exports to the Union;

(b)the export capacity in the country of origin or export, already in existence or which will be operational in the foreseeable future, and the likelihood that the resulting exports will be to the Union.

CHAPTER IV - SURVEILLANCE

Article 7

1. Where the Union's interests so require, the Commission may, at the request of a Member State or on its own initiative:

(a)decide to introduce retrospective Union surveillance of certain imports, in accordance with the procedure laid down by the Commission;

(b)decide, for the purposes of monitoring the trend of these imports, to make certain imports subject to prior Union surveillance, in accordance with Article 8.

2. Decisions adopted pursuant to paragraph 1 shall be taken by the Commission in accordance with the advisory procedure referred to in Article 22(2).

3. The surveillance measures shall have a limited period of validity. Unless otherwise provided for, they shall cease to be valid at the end of the second six-month period following the six months in which the measures were introduced.

Article 8

1. Products under prior Union surveillance may be put into free circulation only on production of a surveillance document. That document shall be issued by the competent authority designated by Member States, free of charge, for any quantity requested and within a maximum of five working days following receipt by the national competent authority of an application by any Union importer, regardless of his place of business in the Union. That application shall be deemed to be received by the national competent authority no later than three working days after submission, unless it is proven otherwise.

2. The surveillance document shall be made out on a form corresponding to the model in Annex II.

Except where the decision to impose surveillance provides otherwise, the importer's application for a surveillance document shall contain only the following:

(a)the full name and address of the applicant (including telephone and fax numbers and any number identifying the applicant to the competent national authority), plus the applicant's VAT registration number if he is liable for VAT;

(b)where appropriate, the full name and address of the declarant or of any representative appointed by the applicant (including telephone and fax numbers);

(c)a description of the goods giving their:

—trade name,

—combined nomenclature code,

—place of origin and place of consignment;

(d)the quantity declared, in kilograms and, where appropriate, any other additional units (pairs, items, etc.);

(e)the value of the goods, CIF at Union frontier, in euro;

(f)the following statement, dated and signed by the applicant, with the applicant's name spelt out in capital letters:

‘I, the undersigned, certify that the information provided in this application is true and given in good faith, and that I am established in the Union.’

.

3. The surveillance document shall be valid throughout the Union, regardless of the Member State of issue.

4. A finding that the unit price at which the transaction is effected exceeds that indicated in the surveillance document by less than 5 %, or that the total value or quantity of the products presented for import exceeds the value or quantity given in the surveillance document by less than 5 %, shall not preclude the release for free circulation of the product in question. The Commission, having heard the opinions expressed in the Committee and taking account of the nature of the products and other special features of the transactions concerned, may fix a different percentage, which, however, should not normally exceed 10 %.

5. Surveillance documents may be used only for such time as arrangements for the liberalisation of imports remain in force in respect of the transactions concerned. Such surveillance documents may not in any event be used beyond the expiry of the period which shall be laid down at the same time and by means of the same procedure as the imposition of surveillance, and shall take account of the nature of the products and other special features of the transactions.

6. Where the decision taken under Article 7 so requires, the origin of products under Union surveillance must be proven by a certificate of origin. This paragraph shall not prejudice other provisions concerning the production of any such certificate.

7. Where the product under prior Union surveillance is subject to regional safeguard measures in a Member State, the import authorisation granted by that Member State may replace the surveillance document.

8. Surveillance document forms and extracts thereof shall be drawn up in duplicate, one copy, marked ‘Holder's copy’ and bearing the number 1, to be issued to the applicant, and the other, marked ‘Copy for the competent authority’ and bearing the number 2, to be kept by the authority issuing the document. For administrative purposes, the competent authority may add supplementary copies to form 2.

9. Forms shall be printed on white paper free of mechanical pulp, dressed for writing and weighing between 55 and 65 grams per square metre. Their size shall be 210 × 297 mm. The type space between the lines shall be 4,24 mm (one sixth of an inch). The layout of the forms shall be followed precisely. Both sides of copy No 1, which is the surveillance document itself, shall in addition have a yellow printed guilloche pattern background so as to reveal any falsification by mechanical or chemical means.

10. Member States shall be responsible for having the forms printed. The forms may also be printed by printers appointed by the Member State in which they are established. In the latter case, reference to the appointment by the Member State must appear on each form. Each form shall bear an indication of the printer's name and address or a mark enabling the printer to be identified.

Article 9

Where the Union's interests so require, the Commission may, at the request of a Member State or on its own initiative, if the situation referred to in Article 13(1) is likely to arise:

—limit the period of validity of any surveillance document required,

—make the issue of that document subject to certain conditions and, as an exceptional measure, subject to the insertion of a revocation clause.

Article 10

Where the import of a product has not been made subject to prior Union surveillance, the Commission may introduce, by means of implementing acts in accordance with the advisory procedure referred to in Article 22(2) and in accordance with Article 15, surveillance confined to imports into one or more regions of the Union.

Article 11

1. Products under regional surveillance may be put into free circulation in the region concerned only on production of a surveillance document. Such document shall be issued by the competent authority designated by the Member State(s) concerned, free of charge, for any quantity requested and within a maximum of five working days of receipt by the national competent authority of an application by any Union importer, regardless of his place of business in the Union. That application shall be deemed to have been received by the national competent authority no later than three working days after submission, unless it is proved otherwise. Surveillance documents may be used only for such time as arrangements for the liberalisation of imports remain in force in respect of the transactions concerned.

2. Article 8(2) shall apply.

Article 12

1. Member States shall communicate to the Commission within the first 10 days of each month in the case of Union or regional surveillance:

(a)in the case of prior surveillance, details of the sums of money (calculated on the basis of CIF prices) and quantities of goods in respect of which surveillance documents were issued during the preceding period;

(b)in every case, details of imports during the period preceding the period referred to in point (a).

The information supplied by Member States shall be broken down by product and by country.

Different provisions may be laid down at the same time and by the same procedure as the surveillance arrangements.

2. Where the nature of the products or special circumstances so require, the Commission may, at the request of a Member State or on its own initiative, amend the timetables for submitting this information.

3. The Commission shall inform the Member States.

CHAPTER V - SAFEGUARD MEASURES

Article 13

1. Where a product is imported into the Union in such greatly increased quantities or on such terms or conditions as to cause, or threaten to cause, serious injury to Union producers of like or directly competing products, the Commission, in order to safeguard the interests of the Union, may, acting at the request of a Member State or on its own initiative, alter the import rules for that product by providing that it may be put into free circulation only on production of an import authorisation, the granting of which shall be governed by such provisions and subject to such limits as the Commission shall lay down.

2. The measures adopted shall be communicated forthwith to the Member States and shall take effect immediately.

3. The measures referred to in this Article shall apply to every product which is put into free circulation after their entry into force. In accordance with Article 15 they may be confined to one or more regions of the Union.

However, such measures shall not prevent the release for free circulation of products already on their way to the Union provided that the destination of such products cannot be changed and that those products which, under Articles 8 and 11, may be put into free circulation only on production of a surveillance document are in fact accompanied by such a document.

4. Where intervention by the Commission has been requested by a Member State, the Commission, acting in accordance with the examination procedure referred to in Article 22(3), or, in cases of urgency, in accordance with Article 22(4), shall take a decision within a maximum of five working days of the date of receipt of such a request.

Article 14

1. The Commission may, in particular in the situation referred to in Article 13(1), adopt appropriate safeguard measures acting in accordance with the examination procedure referred to in Article 22(3).

2. Article 13(3) shall apply.

Article 15

Where, on the basis, in particular, of the factors referred to in Article 6, it emerges that the conditions laid down for the adoption of measures under Chapter IV and Article 13 are met in one or more regions of the Union, the Commission, after having examined alternative solutions, may exceptionally authorise the application of surveillance or safeguard measures limited to the region(s) concerned if it considers that such measures applied at that level are more appropriate than measures applied throughout the Union.

Those measures must be temporary and must disrupt the operation of the internal market as little as possible.

Those measures shall be adopted in accordance with the procedures laid down in Articles 7 and 13 respectively.

Article 16

1. While any surveillance or safeguard measure applied in accordance with Chapters IV and V is in operation, the Commission may, either at the request of a Member State or on its own initiative:

(a)examine the effects of the measure;

(b)ascertain whether the application of the measure is still necessary.

Where the Commission considers that the application of the measure is still necessary, it shall inform the Member States accordingly.

2. Where the Commission considers that any surveillance or safeguard measure referred to in Chapters IV and V should be revoked or amended, it shall, acting in accordance with the examination procedure referred to in Article 22(3), revoke or amend the measure.

Where such a decision concerns regional surveillance measures, it shall apply from the sixth day following that of its publication in the Official Journal of the European Union.

CHAPTER VI - FINAL PROVISIONS

Article 17

1. This Regulation shall not preclude the fulfilment of obligations arising from special rules contained in agreements concluded between the Union and third countries.

2. Without prejudice to other Union provisions, this Regulation shall not preclude the adoption or application by Member States of:

(a)prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy or public security, the protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic or archaeological value, or the protection of industrial and commercial property;

(b)special formalities concerning foreign exchange;

(c)formalities introduced pursuant to international agreements in accordance with the TFEU.

The Member States shall inform the Commission of the measures or formalities to be introduced or amended in accordance with the first subparagraph.

In the event of extreme urgency, the national measures or formalities in question shall be communicated to the Commission immediately upon their adoption.

Article 18

The Commission shall include information on the implementation of this Regulation in its annual report on the application and implementation of trade defence measures presented to the European Parliament and to the Council pursuant to Article 22a of Council Regulation (EC) No 1225/2009 (11).

Article 19

1. This Regulation shall be without prejudice to the operation of the instruments establishing the common organisation of agricultural markets or of Union or national administrative provisions derived therefrom or of the specific instruments adopted under Article 352 of the TFEU applicable to goods resulting from the processing of agricultural products. It shall operate by way of complement to those instruments.

2. In the case of products covered by the instruments referred to in paragraph 1 of this Article, Articles 7 to 12 and Article 16 shall not apply to those in respect of which the Union rules on trade with third countries require the production of a licence or other import document.

Articles 13, 15 and 16 shall not apply to those products in respect of which such rules make provision for the application of quantitative import restrictions.

Article 20

The Commission shall be empowered to adopt delegated acts in accordance with Article 21 concerning amendments of Annex I, in order to remove countries from the list of third countries contained in that Annex when they become members of the WTO.

Article 21

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 20 shall be conferred on the Commission for a period of five years from 20 February 2014. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Article 20 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 20 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 22

1. The Commission shall be assisted by the Committee on Safeguards established by Regulation (EU) 2015/478 of the European Parliament and of the Council (12). That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

4. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

Article 23

Regulations (EC) No 427/2003 and (EC) No 625/2009 are repealed.

References to the repealed Regulations shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex IV.

Article 24

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.